Tough Anti-Tobacco Law Is Passed by City Council

By JAMES C. McKINLEY Jr.

Published: October 9, 1992

The New York City Council overwhelmingly passed a landmark anti-tobacco law yesterday that makes it more difficult for minors to buy cigarettes and requires anti-smoking messages to counter tobacco advertisements in bus shelters and on taxicabs and other spaces owned or licensed by the city.

The law also bans smoking in public and private schools, outlaws the sale of loose cigarettes and requires store owners to ask for proof that customers buying cigarettes are over 21.

The 43-to-4 vote made the city the first in the nation to require companies who lease advertising rights from the city to absorb the costs of posting and maintaining free public health messages. Four Council members were absent.

Specifically, the law requires the companies who own the advertising rights to post one anti-smoking message for every four cigarette ads that appear on city property or in advertising spaces that depend on city leases or licenses. That includes ferries, baseball stadiums, telephone kiosks, taxis, bus shelters and some billboards. Who Will Pay?

The law does not spell out how the companies should make up the lost profits or costs of posting the ads. But the tobacco and advertising industries fear they will be passed on to them. The anti-cigarette posters will be produced by nonprofit groups or individuals who oppose smoking.

No other city or state has tried to force the private sector to provide space for ads that counter the influence of cigarette advertising, though California pays for a public service ad campaign with a 25-cent cigarette tax.

The tobacco and advertising industries have denounced the law as an infringement on their right to free speech by forcing them to make room for ads that are against their interests.

"Whatever you feel about tobacco products you should be opposed to this legislation because it tramples on the First Amendment," said Daniel L. Jaffe, executive vice president of the Association of National Advertisers. "They are claiming they need to take the money from the tobacco companies' hides to make them speak against themselves." 'A Positive Step'

Proponents in the Council argued that advertising can be curbed when the health of children is at risk. Councilman Enoch H. Williams of Queens, the chairman of the Health Committee, said the measure "was not a challenge to the First Amendment rights of the tobacco industry," but "simply a positive step" to encourage young people not to smoke.

But some Council members contended that the law would set a dangerous precedent, opening the door for the government to require ads to offset advertising for everything from butter to beer.

"I wonder where that precedent stops," Councilman John D. Sabini of Queens said. "We may start to ask people to pay for ads for abstinence for every family planning ad that is run."

Another opponent, Walter L. McCaffrey, said he could not vote for the bill unless it also regulated advertising for alcoholic beverages, which also take lives. "There should be a flat-out ban on alcohol and tobacco advertising," he said.

Supporters, including Stanley E. Michels of Manhattan, scoffed at such arguments. They asserted that cigarettes are especially addictive and cause health problems directly.

"Tobacco in any form is dangerous," Mr. Michels said during the debate. "Alcohol when done in moderation can actually be helpful."

Anti-smoking advocates said the bill was a bellwether that would serve as a model for other cities considering such measures. Joseph Cherner, of Smokefree Educational Services, which lobbied for the measure, predicted that the tobacco industry would pull their ads from kiosks and bus shelters rather than risk the hard-hitting messages telling of the dangers of tobacco smoke.

"The tobacco industry would rather have no advertising than to have both sides be told," he said.

Walker Merryman, vice president of the Tobacco Institute in Washington, said the industry had not decided whether to pull the ads or to challenge the law in court. He said he believed the Council's measure could be successfully challenged.

"It is just about impossible for government to ban or restrict truthful speech for legal products under the U.S. Supreme Court decisions and guidelines over the past 16 years," he said.

Photos: City Councilman Enoch H. Williams, above, called the City Council's anti-tobacco law "simply a positive step" to encourage young people not to smoke. Peter F. Vallone, the City Council Speaker, said the law would help youths "avoid the health risks associated with smoking." (John Sotomayor/The New York Times)